The Right of Publicity vs. the First Amendment: Will One Test Ever Capture the Starring Role? – Note by Gloria Franke

America’s fascination with fame and celebrities is self-evident. In our culture, fame is used effectively to persuade, inspire, and inform the public in almost every aspect of our lives. Thus, for celebrities, fame has an inherent economic value, which they endeavor to enhance and protect through the relatively recent legal doctrine of the right of publicity. Broadly defined, the right of publicity is the “inherent right of every human being to control the commercial use of his or her identity.” Celebrities invoke this right to prevent the unauthorized commercial use of their names, likenesses, or other aspects of their identities in order to protect and control their valuable personas.

The public’s fascination with celebrities has evolved into the ubiquitous use of stars to symbolize individual aspirations, group identities, and cultural values. Celebrity images are therefore important expressive and communicative resources and the public’s use of these images is vital to the realization of the First Amendment goals of self-expression and the creation of a robust public discourse. Thus, there is a direct conflict between a celebrity’s right of publicity and the public’s right to free expression embodied in the First Amendment. Courts, in struggling to accommodate these competing interests, have failed to articulate a clear standard to resolve the conflict, resulting in a confusing morass of inconsistent, incomplete, or mutually exclusive approaches, tests, and standards. The chaos surrounding the scope of publicity rights in works protected by the First Amendment has led to a real hit on free expression that is especially troubling as we enter the digital age – with the Internet providing a global platform for expression in our multicultural society. Courts need a clear standard to take the leading role in resolving the conflict between the First Amendment and the right of publicity in expressive works. This Note proposes a test with the clarity and nuance to take center stage and resolve this conflict.